Collins v. Mckelvain
| Decision Date | 06 June 1939 |
| Citation | 189 So. 655,138 Fla. 463 |
| Parties | COLLINS et ux. v. McKELVAIN. |
| Court | Florida Supreme Court |
Rehearing Denied June 24, 1939.
Suit by Drusilla K. Collins McKelvain against Francis M. Collins and his wife, Mabel Collins, for cancellation of a warranty deed given in consideration for a promise of support and care of grantor for the remainder of her life, wherein the defendants filed a cross-bill seeking reimbursement for money expended on plaintiff's board and lodging. Upon death of the plaintiff, the cause proceeded in the name of J. H McKelvain, as administrator of the estate of plaintiff. From a decree for the plaintiff, the defendants appeal.
Affirmed.
BROWN and CHAPMAN, JJ., dissenting. Appeal from Circuit Court, Holmes County; Ira A. Hutchinson, judge.
James H. Finch and H. L. Grace, both of Marianna for appellants.
Clyde R. Brown, of Bonifay, for appellee.
This appeal is from a final decree holding in effect that a warranty deed given in consideration for a promise of support and care of grantor for the remainder of her life may, under certain circumstances, be declared void and cancelled of record.
On September 19, 1930, Mrs. Drusilla K. Collins executed to her step-son, Francis M. Collins, a warranty deed conveying certain described property, containing approximately 79 acres, and on which was situated grantor's home. At the time of the conveyance, the grantor was a widow, about 50 years of age, without child of her own, was gradually growing blind, and had lived on the property conveyed for over forty years.
Plaintiff filed her bill of complaint against defendant praying for cancellation of the deed. The bill alleged that plaintiff deeded the property to her step-son, Francis M. Collins, in consideration of his promise 'to support the plaintiff and furnish her with board, lodging, clothing and all the necessities of life, and care for her tenderly for the remainder of her life, and provide her with a decent burial at her death.' The bill alleged, in effect, that shortly after he acquired a deed to the property, Francis M. Collins changed his attitude towards plaintiff, and would do and say things to make her life unpleasant. The bill also alleged that the defendant denied plaintiff the 'little necessities of life that she needed.'; that his conduct 'become so outrageous' that plaintiff was forced to leave his home on two different occasions; that this conduct of defendant 'has been continuous since the execution of said deed, up until March 1937, when his conduct became so outrageous that plaintiff was forced to leave her home and take up her residence elsewhere.'; that defendant has had the rents and profits from the property since the deed was executed and has sold approximately $800 worth of timber off the property, yet 'the defendant has refused to support plaintiff' and 'has made statements in the Community that he never intended to care for plaintiff or let her live in his home any more.' that even though blind, plaintiff can 'walk from room to room' in her home unaided, and living there would afford her a great source of satisfaction in her declining years.
The gist of the cause stated in the bill of complaint is found in the following portion of the bill:
'Plaintiff alleges that said promises were made by the defendant for the purpose and object to fraudulently obtain a deed to the above described property, which was plaintiff's home, under false and fraudulent promise to give her in her old, feeble, and blind condition, a home and care for her during the remainder of her natural life, when, in fact, the defendant, Francis M. Collins, had no intention of fulfilling said promises, and which promises he afterwards refused to make good as hereinafter recited.'
The defendant answered, denying the material allegations of the bill, and averring that he had spent $700 in making improvements on the property; and filed a cross-bill asking reimbursement for money expended on plaintiff's board and lodging.
Testimony was taken before Special Examiner, Hon. O. C. Speight.
After due notice and argument by counsel, the Chancellor entered final decree finding that the deed herein involved is void; and decreeing that upon plaintiff paying into the registry of the court, for the defendant, $75, within 30 days, for improvements made on the premises, the clerk shall cancel said deed of record.
Suggestion is made here that plaintiff departed this life interstate on ...
To continue reading
Request your trial
-
Anders v. Anders
... ... death of the grantee no other person can be substituted.' ... This ... Court, in the case of Collins v. McKelvain, 138 Fla ... 463, 189 So. 655, 656, had before it for consideration the ... cancellation of a deed in an equity suit, the facts ... ...
-
Ellis v. Sholar
...to proceed to put evidence on at the conclusion of the plaintiff's case. The Supreme Court of Florida in the case of Collins v. McKelvain, 138 Fla. 463, 189 So. 655, 656, held that a deed such as the one mentioned in this case created a presumption that there was fraud in the inception of t......
-
Royal v. Parado
...inducement at the time the agreement is consummated no doubt persuaded the Florida Supreme Court to hold, in Collins v. McKelvain, 138 Fla. 463, 189 So. 655, 656 (1939), on facts similar to the case at bar, Conduct of the grantee, after accepting conveyance of property, and failing to provi......
-
Rennolds v. Rennolds
...(1935), 120 Fla. 106, 162 So. 321.2 See 5 Fla.Jur. Cancellation, Reformation, and Rescission of Instruments §§ 26, 28.3 (1939), 138 Fla. 463, 189 So. 655.4 Id. at p. 656.5 Cf. Winn & Lovett Grocery Co. v. Saffold Bros. Produce Co., 1935, 121 Fla. 833, 164 So. 681; Nichols v. Bodenwein, 1932......
-
Business & commercial cases
...reasonable in the particular case, because it is made to appear that fraud has been practiced on the grantor. Source Collins v. McKelvain, 189 So. 655, 656 (Fla. 1939). See Also 1. Beck v. Hamilton, 174 So. 588 (Fla. 1937). §4:60.1.1 Elements of Cause of Action — 1st DCA [T]his court held t......